Racine Charter One v. Racine Unified

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 05-1003
RACINE CHARTER ONE, INC. D/B/A
21ST CENTURY PREPARATORY SCHOOL,
CHRISTINE HAUCK, AND SHERRY JAMES,
Plaintiffs-Appellants,
v.

RACINE UNIFIED SCHOOL DISTRICT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-484—J.P. Stadtmueller, Judge.
____________
ARGUED JUNE 8, 2005—DECIDED SEPTEMBER 22, 2005
____________

Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Plaintiff Racine Charter One
(Charter One), an independent public charter school located
in Racine County, Wisconsin, sued defendant Racine
Unified School District (RUSD), alleging that the district’s
refusal to bus the charter school’s students constitutes a
violation of the Equal Protection Clause of the Fourteenth
Amendment to the United Stated Constitution and 42
U.S.C. § 1983. The district court granted summary judg-
ment in RUSD’s favor, finding that Charter One students
are not similarly situated to those students who do receive
2 No. 05-1003

the busing benefit, and that the additional cost of transport-
ing Charter One students constituted a rational basis for
RUSD’s decision to deny the school’s request for transporta-
tion. Because we find that the plaintiff’s students are not
similarly situated to those who receive the busing benefit,
and that the additional cost of extending the busing benefit
to Charter One students provides a rational basis for
RUSD’s decision not to transport the plaintiff’s students, we
affirm.

I. BACKGROUND
Wisconsin law provides for two kinds of charter schools:
those sponsored by local school districts, Wis. Stat. § 118.40,
and those sponsored by other entities explicitly authorized
by the state legislature, Wis. Stat. § 118.40(2r) (hereinafter,
“(2r) charter schools”). Charter One falls within the latter
category, established by the University of Wisconsin-
Parkside pursuant to authority granted on a pilot basis by
Wisconsin Statute § 118.40(2r)(b)(1)(c). The plaintiff school
is located in Racine County, Wisconsin, and falls within the
geographical boundaries of the RUSD.
The charter school, which is open and free to all who seek
to enroll, is the only (2r) charter school located within the
RUSD. The school operates independently from the defen-
dant, as the district does not govern or exert any control
whatsoever over the (2r) charter school. Charter One
currently teaches grades K-6, and enrolls approximately
305 students. Its school year is longer than the ordinary
RUSD public school year, and even includes a mandatory
three-week summer session. Its students reside throughout
Racine County.
In addition to providing for the establishment of charter
schools, Wisconsin law also obliges local school districts to
provide transportation to certain students residing within
their districts. Wisconsin Statute § 121.54 requires each
No. 05-1003 3

local school district to transport public, private, and
parochial school students who (1) reside within the district;
(2) attend a school within the geographical boundaries of
that district; (3) attend a school within their designated
attendance area; and (4) (a) reside two miles or more from
that school or (b) would otherwise encounter unusual
hazards in walking to and from that school. Wis. Stat. §§
121.54(2)(a), 121.54(2)(b), & 121.54(9). RUSD’s written
transportation policy closely tracks the requirements of
Section 121.54, with one exception. In contrast to the state-
required minimum radius of two miles, the RUSD policy
provides transportation for all otherwise qualifying K-5
students who live only one and one-half miles or more from
their respective schools.1 Thus, at least in this one respect,
RUSD has extended the busing benefit to more students
than Wisconsin state law would require.
Before opening in September 2002, Charter One re-
quested that RUSD bus its students. In response to this
request, RUSD sought legal advice from various
sources—including its own counsel and Chief Legal Counsel
to the Wisconsin Department of Public Instruction
(DPI)—as to whether the district was legally obliged to
provide transportation to Charter One. All agreed that
Wisconsin Statute § 121.54 did not require public school

1
Section 3541.3(c)(1) of the RUSD Transportation Policy, entitled
“Transportation Service,” provides:
All public and non-public school students, grades K-5,
living one and one half or more miles from their respec-
tive schools or being eligible for transportation under
Wisconsin Statute 121.54(9)—hazardous condi-
tions—shall be transported. All public and non-public
school students, grades 6-12, living two or more miles
from their respective schools or being eligible for trans-
portation under Wisconsin Statute 121.54(9)—hazardous
conditions—shall be transported.
4 No. 05-1003

districts to transport students of independent charter
schools established pursuant to Wisconsin Statute
§ 118.40(2r). The DPI further concluded that such an
interpretation of the statute did not violate the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution. Based on this understanding of
Wisconsin law, the RUSD school board, by a vote of 5-4,
denied Charter One’s request for transportation service
in February 2003.
In May 2003, Charter One brought this action against
RUSD, asserting that its refusal to bus Charter One
students violated the Equal Protection Clause of the
Fourteenth Amendment and 42 U.S.C. § 1983. The district
court granted RUSD’s motion for summary judgment,
finding that Charter One students were not “similarly
situated” to those students who did receive the RUSD
busing benefit, and that RUSD had a rational basis for
its decision not to bus Charter One students—namely,
avoiding the “unique and additional costs” that such busing
would present. Charter One appeals.

II. ANALYSIS
We review a grant of summary judgment de novo, con-
struing all facts in favor of the non-moving party. Wyninger
v. New Venture Gear, Inc., 361 F.3d 965, 974 (7th Cir.
2004).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that he or she was (1) deprived of a federal right,
privilege, or immunity (2) by any person acting under color
of state law. Gomez v. Toledo, 446 U.S. 635, 638 (1980)
(citing 42 U.S.C. § 1983). The federal right in question here
is derived from the the Equal Protection Clause of the
Fourteenth Amendment. The Equal Protection Clause
provides that “no State shall . . . deny to any persons within
its jurisdiction the equal protection of laws.” U.S. CONST.
No. 05-1003 5

amend. XIV, § 1. In so providing, “the Equal Protection
Clause gives rise to a cause of action on behalf of a ‘class of
one’ where the plaintiff did not allege membership in a class
or group.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). “[S]uccessful equal protection claims brought by a
‘class of one’ ” have been recognized “where the plaintiff
alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational
basis for the difference in treatment.” Olech, 528 U.S. at
564.
Here, the district court properly construed Charter One’s
complaint as alleging a class of one equal protection claim.
See Olech, 528 U.S. at 564 n.* (“Whether the complaint
alleges a class of one or of [more] is of no consequence
because we conclude that the number of individuals in a
class is immaterial for equal protection analysis.”). Charter
One argues that local government officials within the RUSD
denied the school and its students the benefit of busing
otherwise provided to all others similarly situated without
a rational basis for distinction. Accordingly, we review the
merits of Charter One’s claim under the Olech standard,
examining first whether the plaintiff’s students are indeed
similarly situated to those students within the RUSD who
do receive busing.

A. Charter One Students Are Not Similarly Situated
To be considered “similarly situated,” comparators must
be “prima facie identical in all relevant respects,” Purze v.
Vill. of Winthrop Harbor, 286 F.3d 452, 455-56 (7th Cir.
2004), or “directly comparable to [plaintiff] in all material
respects,” Ajayi v. Aramark Bus Servs., Inc., 336 F.3d 520,
532 (7th Cir. 2003). Indeed, “[i]t is clear that similarly
situated individuals must be very similar indeed.” McDon-
ald, 371 F.3d at 1002. Here, the pertinent comparison must
be made between those students within the RUSD who
6 No. 05-1003

receive busing, and those Charter One students who do not.
More accurately, the comparison pits RUSD public and
private school students who reside within the RUSD, who
live one and one-half miles or more from their school or
encounter hazardous conditions along the school route, and
who do receive busing, against Charter One students who
reside within the RUSD, who live one and one-half miles or
more from their school or encounter hazardous conditions
along the school route, and who do not receive busing.
But there is some controversy as to whether the compari-
son should end there. Charter One thinks so, contending
that we should look only to—and see patent similarities
in—both class’ residence and attendance within the district,
and their distance from school or their proximity
to hazardous conditions along the way. Indeed, if this
were all to our comparison, the students of both classes
would clearly be similarly situated, as the James family
illustrates. Two of the James children attend Charter One,
and one attends an RUSD public school. All live in the same
house and face the same hazardous condition in getting to
school (there is no sidewalk on their road). But while the
RUSD student gets free busing, the Charter One students
do not.
RUSD, on the other hand, insists that our analysis cannot
end with the students themselves, but rather must also
account for the differences in the schools that the students
of each class attend. Indeed, a student’s situation is, at
least in part, a product of the school that he or she attends.
Various factual traits, circumstantial nuances, and pecu-
liarities can set entities apart, rendering them, by virtue of
their differences, amenable to disparate treatment. See, e.g.,
Bell v. Duperrault, 367 F.3d 703, 708-09 (7th Cir. 2004)
(finding equal protection class of one plaintiff not similarly
situated where the purportedly comparable individuals
submitted applications for pier extensions at different times
than the plaintiff, requested different kinds of extensions,
No. 05-1003 7

or requested mere renovations as opposed to wholly new
structures); Purze, 286 F.3d at 455 (finding equal protection
class of one plaintiffs not similarly situated where “the
allegedly similarly-situated individuals . . . requested
different variances than the [plaintiffs] requested; submit-
ted their plats [for a subdivision] during different time
periods; and had their plat requests granted by different
and previous Boards”); cf. Ciechon v. City of Chicago, 686
F.2d 511, 522 (7th Cir. 1982) (finding two paramedics
similarly situated where both “experienced the same set of
circumstances and were equally responsible for patient
assessment and treatment” on ambulance runs, yet one
“was charged with failure to perform her duties and dis-
charged” while the other “was never charged or disciplined
in any fashion”). Toward that end, the defendant directs our
attention to the unique character of Charter One.
We begin by noting that the Wisconsin laws defining
public schools and public school districts were passed well
before the legal conception of charter schools. For that
reason, much of the operative law on which our analysis
must focus fails to account for these charter schools, or,
more importantly, the Unified School Districts’ obligations
with respect to them. Thus, as we broach this uncertain
area of Wisconsin law, we must make clear that our opinion
extends only to the narrow issue before us: whether RUSD’s
decision not to bus (2r) charter school students violates
equal protection.
Wisconsin Statute § 121.54(2) requires school districts
like RUSD to transport “public” school students. That
Charter One is a public school, no one contests. But while
Charter One contends that its public status entitles it to
Section 121.54 busing at RUSD’s expense, RUSD insists
that the statute’s reach does not extend so far. While it is
true that Section 121.54 does require RUSD to transport
public school students, it does not mandate the transporta-
tion of all such students. Rather, it obliges the district to
8 No. 05-1003

transport only those public school students who reside
within its geographical boundaries. Certainly, no party
would argue that Section 121.54 requires the RUSD to bus
the residents of other school districts to public schools
located in other districts. Wis. Stat. § 121.54(10) (“[A] school
board may not provide transportation under this subsection
for a nonresident pupil to or from a location within the
boundaries of the school district in which the pupil re-
sides.”). Nor, with irrelevant exceptions, would the district
be required to bus the residents of other school districts
who attend RUSD public schools. Furthermore, and again
with exceptions not pertinent here, the RUSD would not be
required to bus its own residents to schools located in other
school districts.
With these limitations in mind, RUSD contends that
Charter One is the functional equivalent of an independent
school district, and as such responsible for its own busing.
By RUSD’s measure, while Charter One is a public school,
its students would be no more entitled to RUSD-funded
busing than students attending adjacent school districts
such as Kenosha Unified School District, Oak Creek School
District, or Raymond School District. While Charter One
would at first blush appear to fall within the geographical
boundaries of the RUSD, it is, according to the defendant,
in fact its own administrative island—an independent
school district surrounded on all sides, though not sub-
sumed, by the RUSD.
Charter One is a unique statutory creation. Unlike other
public schools within the RUSD (or private and parochial
schools for that matter), Charter One came to being through
a charter granted by the University of Wisconsin-Parkside.
The University was specifically vested with the authority to
do so by the Wisconsin state legislature pursuant to
Wisconsin Statute § 118.40(2r)(b). Charter One has its own
board, its own faculty, and its own staff. As an administra-
tive matter, the school operates wholly independent of
No. 05-1003 9

RUSD. RUSD governs neither the charter school nor its
board. Indeed, the district may not exert any control
whatsoever over Charter One, and Charter One cannot
exert any control over the district. The two entities simply
enjoy no legal relationship.
This autonomy in administration goes a long way to
suggest that Charter One is not just an independent public
school, but also an independent public school district.
Wisconsin law defines “school district” as “the territorial
unit for school administration.” Wis. Stat. § 115.01(3). And
while this provision does not explicitly include the word
“charter,” it does not exclude the term from its definition
either. To the contrary, Charter One’s independence and
sole responsibility for its own administration would suggest
that the otherwise unmentioned entity falls squarely within
Section 115.01(3)’s definition.
Charter One’s administrative autonomy—particularly
with reference to busing obligations—is further demon-
strated by its own charter. Section 4.8 of the Charter School
Contract Between the Board of Regents of the University of
Wisconsin System and Charter One, entitled “Transporta-
tion Contracts,” vests Charter One with the authority to
“enter into contracts with other school districts or persons,
including municipal and county governments, for the
transportation of Charter School students to and from
school and for field trips.” (emphasis added). This language,
along with signaling the charter school’s administrative
autonomy, also suggests that contracting for—as opposed to
stark entitlement to—busing from school districts was
contemplated from the outset. Charter One, however,
insists that its ability to contract for transportation services
does not set it apart from other schools within the RUSD.
First, it notes that RUSD itself possesses such authority.
But such a comparison is self-defeating, as Charter One’s
effort here to liken itself to an independent school district
10 No. 05-1003

only reinforces the view that the school is an autonomous
district as well.
The charter school’s second argument, which suggests
that its authority to contract for transportation free from
RUSD interference is no different than that of private
schools whose students nonetheless receive the busing
benefit, is more compelling, yet ultimately unavailing as
well. As a threshold matter, Charter One has adduced no
evidence to support its claim regarding the contracting
authority of private schools. But even were we to assume
the veracity of such an unsupported claim—an eminently
reasonable assumption—the proffered comparison does
nothing to advance the school’s “similarly situated” argu-
ment. Charter One concedes—indeed insists—that it is a
public school. Under no construction would it or any other
party argue that it was a private school. Thus, its charter-
prescribed ability to contract for transportation, while akin
to the powers of those private schools which receive the
RUSD busing benefit, does nothing to liken this unique
public school to RUSD public schools that receive busing. It
is upon this comparison that Charter One’s similarly
situated argument depends. While there may be some
arguable uncertainty over exactly what kind of public school
a (2r) charter school is, one thing is clear: they most
certainly are not private or parochial schools.
In addition, we think it worthy to note, though not
dispositive to our analysis of the current state of Wisconsin
law, that the Wisconsin legislature has twice attempted—
and failed pursuant to gubernatorial veto—to pass legisla-
tion that would provide charter schools like Charter One
the busing to which the plaintiff here claims a present
entitlement. A.B. 261, Assem., 2003 Reg. Sess. (Wis. 2003);
S.B. 44, Senate, 2003 Reg. Sess. (Wis. 2003). These at-
tempts suggest that even the body entrusted with providing
the busing benefit does not believe that it has yet been
conferred to charter schools.
No. 05-1003 11

Accordingly, we affirm the district court’s finding that
Charter One has failed to show that its students are
similarly situated to those students who do receive the
busing benefit.

B. RUSD Has A Rational Basis for its Decision to
Deny the Busing Benefit
But even assuming that Charter One’s students are
similarly situated to other students within the RUSD, the
school’s challenge fails nonetheless in light of the plain-
tiffs’ failure to meet the class of one claim’s second prong.
The exact contours of the second prong of the class of one
equal protection claim are not quite clear. As we noted
above, the Supreme Court in Olech held that it has “recog-
nized successful equal protection claims brought by a ‘class
of one,’ where the plaintiff alleges that she has been
intentionally treated differently from others similarly
situated and that there is no rational basis for the difference
in treatment.” 528 U.S. at 564 (emphasis added). However,
since Olech was decided, the standard for such class of one
claims has been muddled in this circuit by two divergent
lines of cases. Tuffendsam v. Dearborn County Bd. of
Health, 385 F.3d 1124, 1127 (7th Cir. 2004) (recognizing
divergent lines); Indiana Land Co. v. City of Greenwood,
378 F.3d 705, 713 (7th Cir. 2001) (same). In one line of
cases, panels of this court have held that a class of one
equal protection claim is established where the defendant
has intentionally treated the plaintiff differently than
others similarly situated either without any rational basis
for doing so or out of some “totally illegitimate animus.” See
Lunini v. Grayeb, 395 F.3d 761, 768 (7th Cir. 2005);
Levenstein v. Salafsky, 414 F.3d 767, 775-76 (7th Cir. 2005);
McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.
2004) (citing, inter alia, Olech, 528 U.S. at 564); Nevel v.
Vill. of Schaumberg, 297 F.3d 673, 681 (7th Cir. 2002);
12 No. 05-1003

Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.
2001). In another line, however, we have held that the mere
absence of a rational basis is not enough to sustain the class
of one claim, and that instead the plaintiff must prove
illegitimate animus in order to succeed. See Hilton v. City
of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000); see also
Crowley v. McKinney, 400 F.3d 965, 972 (7th Cir. 2005);
Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th
Cir. 2002); Cruz v. Town of Cicero, 275 F.3d 579, 587 (7th
Cir. 2001); Bartell v. Aurora Public Schools, 263 F.3d 1143,
1149 (10th Cir. 2001); Bell v. Duperrault, 367 F.3d 703, 709-
13 (7th Cir. 2004) (Posner, J., concurring).
Cases like “Nevel and Albiero track explicitly the Supreme
Court’s holding and are wholly consistent with its ratio-
nale.” Indiana Land Co., 378 F.3d at 713 (Ripple, J.,
concurring). In contrast, the Supreme Court explicitly
declined to reach the animus approach upon which Hilton
and its progeny insist, concluding that “allegations [of
intentional action with no rational basis], quite apart from
the Village’s subjective motivation, are sufficient to state a
claim for relief under traditional equal protection analysis.
We therefore affirm the judgment of the Court of Appeals,
but do not reach the alternative theory of ‘subjective ill will’
relied on by that court.” Olech, 528 U.S. at 565; see also
Bell, 367 F.3d at 711 (Posner, J., concurring) (conceding
that insisting on a free-standing animus test for class of one
claims may be akin to “fighting a doomed rearguard ac-
tion”).
Indeed, it appears our court may have created a “tension”
with Olech and established national law where previously
none existed. Indiana Land Co., 378 F.3d at 714 (Ripple, J.,
concurring). True, sound reasons have been advanced for
grafting the animus requirement onto the class of one
claim—without such a requirement, “breathtaking vistas of
liability” might be opened, Tuffendsam, 385 F.3d at 1127,
and ordinary state law disputes might become the subject
No. 05-1003 13

of constitutional challenge, Bell, 367 F.3d at 712 (Posner, J.,
concurring). That said, the appearance of the animus
requirement on the class of one stage is no less jarring.
However, we need not decide under which standard the
class of one plaintiff must proceed, as here Charter One
fails under both. Because the plaintiff has failed to allege,
let alone show, any subjective ill will on the part of the
RUSD in denying the busing benefit, Charter One’s class of
one claim would clearly fail under the animus standard.2
Under the rational basis test, the court “will uphold the
legislative enactment (or classification) so long as it bears
a rational relation to some legitimate end.” Eby-Brown Co.,
LLC v. Wis. Dep’t of Agric., Trade & Comsumer Prot., 295

2
At oral argument, Charter One did as an afterthought float
in rebuttal the idea that RUSD’s decision not to bus its students
might have been the product of improper animus—the animus
being, according to Charter One, a form of jealousy harbored by
the financially-strapped RUSD (which has struggled of late to win
money from the public through referenda that would enable it to
pay its bills and maintain its athletic programs, see Alice L.
Chang, Passage of Referendum Gives District a Breather: Unified
gets $6.45 Million For Next Year, MILWAUKEE J. & SENTINEL, June
25, 2005, at A1; Alice L. Chang, District Wrestles with Money
Troubles: Racine Faces Job Cuts, Closing of Schools, MILWAUKEE
J. & SENTINEL, Apr. 26, 2005, at A5; Alice L. Chang, Budget Cuts
Loom in Racine Unified School District: Staff, Athletics May Be
Targeted After Defeat of Referendum, MILWAUKEE J. & SENTINEL,
Apr. 10, 2005, at A1) against the more-affluent Charter One
(which counts among its various financial backers the S.C.
Johnson Fund). This argument—whatever its merit—was not
presented to the district court, and has accordingly been forfeited.
See, e.g., United States v. Olano, 507 U.S. 725, 731-32 (1993) (“No
procedural principle is more familiar to this Court than that . . .
a right of any other sort, may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.”) (internal
quotes omitted).
14 No. 05-1003

F.3d 749, 754 (7th Cir. 2002). A court will not strike down
a state policy merely because it “may be unwise, improvi-
dent, or out of harmony with a particular school of thought.”
Id. Rather, this inquiry requires the court to “consider only
whether any state of facts reasonably may be conceived to
justify the classification,” Rabbi Abraham Grossbaum and
Lubavitch of Indiana, Inc.v. Indianapolis-Marion County
Bldg. Auth., 100 F.3d 1287, 1292 (7th Cir. 1996), and it is
enough that “a purpose may conceivably or may reasonably
have been the purpose and policy of the relevant govern-
mental decisionmaker,” even if the decisionmaker never
articulated that rationale, Nordlinger v. Hahn, 505 U.S. 1,
15 (1992). Here, the unique and independent nature of
Charter One not only suggests that the school’s students
are not similarly situated to those who do receive RUSD
busing, but also provides a rational basis for denying the
benefit to those students.
Again, the unique and autonomous nature of Charter
One—a seeming functional equivalent of an independent
school district—provides one such rational basis for RUSD’s
decision not to bus the charter school’s students. According
to RUSD, its goal is to provide busing only to those students
whom it is required to transport by law—namely, students
of its own schools and resident students of private and
parochial schools located within the district. Were we to
view Charter One as its own school district, RUSD would be
no more required to transport the charter school’s students
than it would be required to transport resident students
who attend adjacent school districts. Indeed, as Charter
One concedes, RUSD’s policy is consistent with that of
school districts throughout Wisconsin, which uniformly
exclude independent charter schools from their busing
schemes. And the mere fact that Charter One is the only
independent charter school within the geographic bound-
aries of the RUSD does not render its exclusion discrimina-
tory. Based on the administrative autonomy afforded (2r)
No. 05-1003 15

charter schools under Wisconsin law, it seems that they do
exist beyond the pale of local school district transport
obligations—an independence that would serve as a
rational basis to deny such schools Section 121.54 busing.
But we need not find that Wisconsin charter schools
established under Wisconsin Statute § 118.40(2r) in
general, or Charter One in particular, constitute independ-
ent schools districts of their own right in order to reveal the
deficiency in the plaintiff’s class of one equal protection
claim here. Rather, we need only recognize the unique and
additional costs that RUSD would incur were it to provide
such service to Charter One.
As RUSD expressed at oral argument, “Cost is the issue;
cost is everything here.” This Court has already recognized
cost as a rational basis for differential treatment. Irizarry
v. Board of Educ. of City of Chicago, 251 F.3d 604, 610 (7th
Cir. 2001); see also Bankers Life & Casualty Co. v. Cren-
shaw, 486 U.S. 71, 83-84. The record does not provide a
hard number on exactly how much more it would cost
RUSD to bus Charter One students. It does afford an
estimate of how much it would cost to implement from
scratch an independent busing scheme devoted solely to
Charter One students—$124,000 per year for 257 stu-
dents—a quote Charter One obtained from a bus company
as a result of its own research into potential transportation
costs. But this figure is in all likelihood over-inflated. For
one, the estimate assumed that nearly the entire Charter
One student body at the time would require busing—an
unlikely assumption (though we do note that the size of the
student body has since expanded to over 300, and is
designed to reach at least 400 in the future). Furthermore,
the extension of the RUSD busing benefit to Charter One
students would not require the wholesale implementation
of new busing schedules and routes, but rather could be
accomplished, at least in part, by taking advantage of the
busing scheme already in place.
16 No. 05-1003

Indeed, Charter One makes much of the fact that there
are already existing RUSD bus routes that pass by Charter
One with empty seats—seats that the school contends could
be filled by its students. But just because a bus has empty
seats when it passes by Charter One does not necessarily
mean that those seats are going unused. Rather, those seats
may be reserved for students yet to be picked up, or perhaps
only recently vacated by students dropped off mere mo-
ments before passing the school. Thus, there may not be as
much room on those buses as the plaintiff suspects, and the
less room there is, the more the need for additional buses to
accommodate Charter One students—at a daily rate of
$124.66 per bus, not including an additional $24.29 per run.
Dep. of Karen Flynn at 84-85 (July 18, 2003).
Regardless of the current load and capacity of the existing
buses and their designated routes, other peculiarities
associated with adding Charter One students to the RUSD
busing mix might work appreciable costs in both RUSD
time and money. To avoid the cost of implementing a busing
scheme devoted exclusively to Charter One, RUSD would
almost certainly be forced to alter its current busing routes.
Some buses service more than one school, requiring the
accommodation of not only the various, specific addresses of
each passenger (both current riders and each added Charter
One student), but also the coordination of potentially
different start and end times at each school serviced. Such
alterations would come with appreciable costs, be they the
creation of new routes, the addition of more busses, or the
elongation of bus routes requiring earlier pick-ups and later
drop-offs. And while the record does not allow us to quantify
these additional costs to RUSD with any degree of cer-
tainty, we are confident that they are substantial enough to
provide a rational basis for RUSD’s refusal to extend the
busing benefit to Charter One students.
It requires no stretch of the imagination whatsoever to
see that cost is indeed RUSD’s issue here. Compared to
No. 05-1003 17

Charter One’s relatively small and manageable universe of
students, faculty, and staff, RUSD must care for the needs
and costs of over 20,000 students, as well as dealing with
the monetary demands of various collective bargaining
groups and legislative caps on its spending. True enough,
both Charter One and the schools of the RUSD receive the
same amount of operational funding from the DPI (about
$6900 per pupil per year); but only the plaintiff can draw on
generous financing from local benefactors such as the S.C.
Johnson Fund in times of need. And if the money runs out,
Charter One can go to that generous benefactor for assis-
tance; school districts, such as RUSD, on the other hand,
are forced to prostrate themselves before the taxpayer, at
the mercy of referenda. RUSD tells us that it simply cannot
take on any more costs without receiving more money. The
defendant admitted at oral argument that if cost was not an
issue—if it could be paid or reimbursed the costs of busing
Charter One students by Charter One itself or one of its
financial backers—then the district would have no objection
to extending the benefit. Such contracting for services is
precisely what these circumstances call for, as we again
note Section 4.8 of the plaintiff’s charter, which explicitly
empowers the school to enter into such contracts for
transportation.
But the defendant’s financial straits need not be dire for
us to find its refusal to extend transportation services to
Charter One rational. We need only recognize that extend-
ing the busing benefit will come at a significant enough
expense to RUSD, and that is rational basis enough to
justify its transportation policy decision. For now, it suffices
to say that Charter One is not entitled to a free ride.

III. CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment in the defendant’s favor.
18 No. 05-1003

CUDAHY, Circuit Judge, concurring in part and concurring
in the judgment. While I concur in the affirmance of the
district court, I would follow a different course of reasoning.
Specifically, although I agree that Charter One, as a unique
statutory creation with distinct sources of funding, is not
similarly situated to other schools located in the RUSD (and
thus may be subject to disparate treatment), I believe that
the children of the two individual plaintiffs, who are
Charter One students, are similarly situated to at least
some of the students furnished busing by the RUSD.
Accordingly, RUSD’s refusal to bus Charter One students
based solely on their school affiliation seems irrational.
RUSD buses all public and private school students who
live more than 1.5 miles from their chosen school or who
face hazardous walks to school—even those it is not stat-
utorily required to transport—ostensibly for safety reasons.
And it denies transportation services to otherwise qualified
Charter One students allegedly for cost reasons. Both safety
and cost would seem to be eminently legitimate state
interests. The question then becomes whether RUSD’s
busing policy is rationally related to these interests—i.e.,
whether RUSD’s refusal to bus Charter One students (and
only Charter One students) is rational in light of those
interests.
Purely as a matter of logic, the RUSD policy does not hold
up. Of course, as a general matter it is rational to base
government policies on considerations of cost. Irizarry v.
Bd. of Educ. of the City of Chicago, 251 F.3d 604, 610 (7th
Cir. 2001). And despite the plaintiffs’ allegations that many
of the Charter One students could be accommodated with
existing buses and existing bus routes, there will always be
some additional cost associated with transporting new
students, even if it is just the added time, fuel and mileage
associated with making additional stops on existing bus
routes. Yet even assuming that the Charter One students
will bring higher costs, there appears to be no rational basis
No. 05-1003 19

for excluding these particular students versus the other
students RUSD has chosen to transport. Put differently,
since there is no indication in the record that Charter One
students are somehow inherently more costly to transport
per mile than other students that RUSD has chosen to bus,
a per se policy excluding them on cost grounds is not
rational.
RUSD (and the district court) point out that Charter One
students have a longer school year than students at other
public schools and a mandatory summer session, both of
which, it is claimed, will make Charter One students
uniquely costly to transport on an annual basis. Yet it is
undisputed that RUSD already buses students of at least
one year-round elementary school (James Elementary
School) and provides busing for RUSD summer school
students. (App. D. at 44.) Thus cost considerations related
to the length of the Charter One school year do not explain
why RUSD refuses to bus Charter One students but is
willing to transport these other year-round students.
The RUSD policy is also irrational with respect to safety
considerations. It is undisputed that RUSD already buses
children who live in the same neighborhoods and walk
similar distances along the same routes to school as Charter
One students. The children of plaintiff James provide a
case-in-point. All three of the James children must cross the
same “hazardous” areas on their way to school,1 yet RUSD
buses only the one child who attends Julian Thomas
Elementary School, refusing to bus the two siblings who
attend Charter One, solely because of their school affilia-
tion. Purely as a matter of safety, there is no rational
reason to deny two of these children transportation while
busing their sibling.

1
Specifically, the children must cross Washington Avenue, which
has been deemed “hazardous” by the relevant district authorities.
20 No. 05-1003

The other criterion of eligibility for the RUSD policy is the
distance a student must travel to attend school. And here
again there is no rational basis—based on either cost or
safety—for distinguishing between Charter One students
who live 1.5 miles or more away from their chosen school
and other children who must travel the same distances. In
short, given RUSD’s own stated policy goals, there is no
rational basis for distinguishing between Charter One
students who face hazardous walks to school or live 1.5
miles or farther from Charter One and the other students
whom RUSD is not statutorily required to transport2 but
who receive busing services based on these same criteria.
Once RUSD has extended its transportation policy to
include students that it is not legally required to transport,
and has established objective criteria—based solely on
distance and safety—to determine which students are
eligible for transportation, RUSD cannot rationally exclude
certain students based on school affiliation alone. Excluding
Charter One students might save money; it might be good
administrative practice; but the key consideration here is
rationality, and such a policy is not rational in light of the
other students RUSD already transports. It is not rational
to treat equally expensive or equally at-risk students
differently based solely on their school affiliation. Indeed if
RUSD’s cost-based arguments here can succeed, any
government official could deny service to any individual,
regardless of the dictates of government policy, based solely
on the proposition that serving one additional person would
cost more than not serving him or her.

2
In fact the plaintiffs argue that RUSD might be statutorily
required, under Wisconsin law, to transport Charter One stu-
dents. However, this state law claim is not before this Court on
appeal.
No. 05-1003 21

Yet the claims of the student plaintiffs still must fail for
one simple reason: they have not alleged or introduced
evidence suggesting that RUSD acted out of hostility or
illegitimate animus toward them.
Contrary to the majority’s framing of the class of one
inquiry, we have held quite recently that “ ‘to make out a
prima facie case [of a ‘class of one’ denial of equal protec-
tion] the plaintiff must present evidence that the defendant
deliberately sought to deprive him of the equal protection of
the laws for reasons of a personal nature unrelated to the
duties of the defendant’s position.’ ” Tuffendsam v. Dearborn
County Bd. of Health, 385 F.3d 1124, 1127 (7th Cir. 2004)
(quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008
(7th Cir. 2000)) (emphasis added). That is, the plaintiffs
must demonstrate that the defendant’s actions were not
merely arbitrary and irrational, but motivated by “animos-
ity” or “personal hostility”—a desire to make the plaintiff
worse off than others similarly situated. Crowley v.
McKinney, 400 F.3d 965, 972 (7th Cir. 2005). Accord Hilton,
209 F.3d at 1008 (requiring class of one plaintiff to demon-
strate that defendant acted out of “illegitimate animus”)
(internal quotation marks omitted).3

3
Admittedly, the precise contours of the class of one theory have
not always been drawn with total clarity. Here the majority
acknowledges the existence of two lines of cases in this circuit—
one of which recognizes animus as a requisite to a class of one
discrimination claim while the other apparently recognizes only
irrationality. See Tuffendsam, 385 F.3d at 1127 (noting this
ambiguity); McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001-02
(7th Cir. 2004) (same); Bell v. Duperrault, 367 F.3d 703, 709-10
(7th Cir. 2004) (Posner, J., concurring) (discussing the ambiguity
and collecting cases). The majority then suggests (I think incor-
rectly) that the animus line of cases might be withering on the
vine.
(continued...)
22 No. 05-1003

This animus requirement was introduced out of concern
that, in its broader formulations, the class of one theory
opens up “breathtaking vistas of liability,” Tuffendsam, 385
F.3d at 1127, and threatens to transform ordinary state law
disputes—or even previously unreviewable acts of police
discretion—into fodder for constitutional lawsuits. See Bell
v. Duperrault, 367 F.3d 703, 712 (7th Cir. 2004) (Posner, J.,
concurring) (noting that since “irrational differences in
treatment having nothing to do with discrimination against
a vulnerable class abound at the bottom rung of law
enforcement . . . . the federal courts will be swamped with
‘class of one’ cases remote from the purpose, and beyond the
feasible scope, of the equal protection clause”); Vill. of
Willowbrook v. Olech, 528 U.S. 562, 566 (2000) (Breyer, J.,

3
(...continued)
Yet at least two of the cases upholding an animus require-
ment actually post-date authorities relied upon by the majority,
comprising some of this Court’s most recent pronouncements
on the issue. Additionally, while the Supreme Court’s cursory
treatment of the class of one theory in Village of Willowbrook v.
Olech, 528 U.S. 562, 564-65 (2000), does not reach this animus
requirement, the Court also does not disavow it, and over the last
year we have concluded that some level of animus is implied
in the requirement that any adverse treatment be “intentional”:
“[W]e don’t think the Supreme Court in Olech intended to overrule
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256,
99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), which holds that an official
‘intends’ a consequence when he acts because rather than in spite
of it.” Tuffendsam, 385 F.3d at 1127.
More fundamentally, as long as the cases recognizing the
animus requirement have not been overruled or otherwise
authoritatively rejected, I think it preferable in cases like this
to rely on a lack of animus rather than, with all respect, to have
recourse to rather tortured analyses of irrationality. The present
case is an excellent example of the need for a sensible limiting
principle less elusive than the sometimes will-of-the-wisp of
irrationality.
No. 05-1003 23

concurring) (registering “concern about transforming
run-of-the-mill zoning cases into cases of constitutional
right”); Hilton, 209 F.3d at 1008 (rejecting the “no rational
basis” approach because “[i]f a merely unexplained differ-
ence in police treatment of similar complaints made by
different people established a prima facie case of denial of
equal protection of the laws, the federal courts would be
drawn deep into the local enforcement of petty state and
local laws”).
Indeed in the case before us one can certainly glimpse the
enormous new areas of potential liability opened up by the
“class of one” theory, as well as the corresponding need for
a limiting animus requirement. If elementary school
students may resort to a federal constitutional lawsuit to
challenge any irrational misallocation of school district re-
sources—even ones that implicate no fundamental right4
and involve no suspect classification5—what else might be
covered by the Equal Protection Clause? Absent some
restriction on the doctrine, Judge Posner’s nightmare
scenario, outlined in Bell v. Duperrault, 367 F.3d at 709-10,
of citizens bringing constitutional challenges against the
uneven issuance of speeding tickets may not be hyperbole
after all. Certainly RUSD’s policy here, as applied to the

4
It is well established that the right to an education is not
considered a fundamental right, San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 33-35 (1973); Martin v. Shawano-Gresham
School Dist., 295 F.3d 701, 712-13 (7th Cir. 2002), and students
have no right whatsoever to free transportation to school,
Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 458-61 (1988);
Johnson v. Daley, 339 F.3d 582, 586 (7th Cir. 2003) (en banc) (“A
right to education does not imply a right to free transportation to
school.”) (citing Kadrmas).
5
There is no allegation that RUSD refuses to transport Charter
One students based on their race, nationality, gender, age or other
(quasi) suspect classification.
24 No. 05-1003

individual plaintiffs, is no more arbitrary or irrational than
the decision of a traffic cop to ticket one particular speeding
car while refusing to ticket other cars traveling at similar
speeds.
Without any allegation or showing of animus against the
plaintiff school children, the individual plaintiffs simply
have not made out a prima facie case of discrimination
under the class of one theory as articulated by this Court.
Before closing, I should also add that the current lawsuit
appears not just legally misguided but also wholly unneces-
sary. For aught that appears, this dispute could have been
settled simply by arranging for payments from Charter One
to RUSD to cover the additional cost of busing Charter One
students. Indeed this sort of thing seems to be standard
practice in every other school district in the state. It is
undisputed that virtually all of Wisconsin’s 120 other
charter schools pay for their own students’ busing to some
degree, and, as the majority notes, section 4.8 of Charter
One’s own founding charter seems to anticipate a similar
arrangement. In the end the key issue, as both parties
apparently concede, is not whether the Charter One
students will ultimately receive busing, but who must pay
for it. Regardless of who is most at fault for the current
impasse, this is just not the stuff of constitutional litigation.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—9-22-05